To be or not to be … a looked after child

The Court of Appeal has issued an important judgment on the status of placements of children with relatives that were made before 1 April 2011 and whether the carer is entitled to a fostering allowance. Sally Gore analyses the ruling.

Local authorities have grown used to grappling with the decision of the Court of Appeal in Southwark LBC v D [2007] EWCA Civ. 182. In that case a young girl, S, reported to her school that her father had been beating her. Southwark social services became involved and S requested to stay with her father’s former partner, ED. The social worker from Southwark made arrangements for S to stay with ED, made preliminary checks on the household and took S to ED’s home. ED eventually obtained a residence order but the question arose as to what had been S’s status from the time she was placed with ED until the residence order was made.

When this case reached the Court of Appeal, Southwark attempted to argue that this had been a private fostering arrangement. Consequently S was not placed with ED by Southwark because the availability of this private arrangement meant that no duty to accommodate S arose under Section 20(1), Children Act 1989 and S was not therefore a looked after child. Alternatively, if any such duty had arisen, it had been discharged by the local authority making arrangements for S to live with ED under s.23(6), Children Act and not by placing her as a looked after child under s.23(2).

These arguments failed in this case. The question asked by Smith LJ in the Court of Appeal was “What did Southwark in fact do?”[1] It was clear that S was in need of accommodation because her father could no longer care for her, a duty arose under s.20(1) and S became a ‘looked after child’. Southwark had played a central role in making arrangements for S and, crucially, had not informed ED that she was taking on financial responsibility for her. S was placed with ED under s.23(2) and ED should therefore have been paid a fostering allowance by Southwark.

Those local authorities hoping that the recent decision in Kent County Council v SA [2011] EWCA Civ. 1303 would offer something of a reprieve were to be sorely disappointed. The decision itself adds very little to the reasoning in the Southwark case. The local authority in this case had had concerns about the care that the child had been receiving from her mother and so made arrangements for her to live with her grandmother.

Black J at first instance had found that the local authority had taken the lead in these arrangements and had remained involved in the arrangements for A at her grandmother’s. Consequently this was not a private fostering arrangement and nor was it a placement under s.23(6). The Court of Appeal upheld the decision of Black J that this had been a placement under s.23(2) and that the child therefore remained a looked after child and a full fostering allowance should have been paid to the grandmother for the duration of the placement. The local authority had not assisted its own case by its failure to tell the grandmother that she would herself be financially responsible for the child and Black J had explicitly rejected the argument on behalf of the local authority that such discussions were not necessary when the person with whom the child was being placed was a relative.[2]

The Court of Appeal went on, however, to consider the interpretation of what used to be section 23, Children Act. Although this section was repealed on 1 April 2011, its provisions are still relevant when considering children whose placements were made prior to that date.[3]

The relevant subsections of s.23 read as follows:

1. It shall be the duty of any local authority looking after a child –

(a) when he is in their care, to provide accommodation for him; and

(b) to maintain him in other respects apart from providing accommodation for him.

2. A local authority shall provide accommodation and maintenance for any child whom they are looking after by –

(a) placing him (…) with –

(i) a family;

(ii) a relative of his; or

(iii) any other suitable person,

on such terms as to payment bythe authority and otherwise as the authority may determine…

(aa) maintaining him in an appropriate children’s home or

(f) making such other arrangements as –

(i) seem appropriate to them; and

(ii) comply with any regulations made by the appropriate national authority.

(4) A person falls within this subsection if he is –

(a) a parent of the child;

(b) a person who is not a parent of the child but who has parental responsibility for him; or

(c) where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made.

(6) Subject to any regulations made by the appropriate national authority and for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with –

(a) a person falling within subsection (4); or

(b) a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

In the earlier case of In re H (A Child) (Care order: Appropriate Local Authority) [2003] EWCA Civ 1629, the Court of Appeal had decided that s.23(6) places local authorities under a duty to enable a looked after child to live with a person or family to whom he is related or otherwise closely connected. Once this has been achieved, the child ceases to be provided with accommodation by the local authority and is therefore no longer a looked after child. However, the wording of s.23(2) allowed children to be placed with family and yet remain looked after by the local authority. Consequently, looked after children placed with a relative could either be placed under s.23(2), in which case they remained looked after children, or they could be placed under s.23(6), and cease to be looked after at the point of placement.

The financial implications for local authorities and carers were that carers of children who were looked after would be entitled to a fostering allowance, whereas those who cared for children placed under s.23(6) would only be entitled to discretionary payments out of their local authority’s s.17 (children in need) budget.

The view of the Court of Appeal in Kent v SA was that the interpretation in In re H was probably incorrect. They preferred the view that s.23(1) sets out the duty to provide accommodation and maintenance to looked after children, and the remainder of s.23 presents a unified scheme by which that duty can be fulfilled; that is, s.23(2) sets out the means by which a looked after child can be provided with accommodation and maintenance pursuant to the s.23(1) duty and s.23(6) requires local authorities, wherever possible and consistent with the child’s welfare, to place looked after children with their parents, relatives, family friends and other connected persons. Consequently, there is no distinction to be drawn between placements under s.23(2) and placements under s.23(6).

Whilst this analysis is clearly compelling and suggests that some of the mental gymnastics required of the Court in Southwark v D might have been avoidable, after having considered in some depth the question of whether the Court could depart from its earlier decision in In re H the Court of Appeal ultimately found itself bound by the earlier authority.[4] It did, however, offer an invitation to the Supreme Court to consider the interpretation of s.23 should the opportunity arise.

That section having been repealed, it is perhaps unlikely that the Supreme Court will now have that opportunity. Placements made after 1 April 2011 are now governed by the new section 22C, Children Act. This section is structured in a way that closely reflects the interpretation of the old s.23 preferred by the Court of Appeal in this case. The difficulties faced by Kent and Southwark should not arise in future although clarity comes at a cost to local authorities.

The first consideration for a local authority seeking to place a child is whether they can be placed with a parent, person with parental responsibility, or a person in whose favour a residence order was in force prior to a care order being made: s.22C(3). If this is not possible, the authority must consider the best alternative placement. The meaning of ‘placement’ is set out in s.22C(6) and the reference in s.22C(6)(a) to a ‘relative, friend or other person connected with C’ is followed by ‘and who is also a local authority foster parent’. In an emergency, a relative, friend etc can be granted temporary approval as a local authority foster carer under Regulation 24 of the Care Planning, Placement and Case Review (England) Regulations 2010. Whatever the correct interpretation of the old legislation, therefore, it is clear that local authorities no longer have the option of placing a child with a ‘connected person’ at the personal expense of that person.

What has not changed, however, is that local authorities making arrangements for children to stay with relatives because they cannot be cared for by their parents, whether in the context of care proceedings or not, and regardless of whether a care order is made, may find themselves challenged if they opt to treat the placement as private fostering rather than a local authority foster placement.

Sally Gore is a barrister at 14 Gray's Inn Square. She is the author of The Children Act 1989: Local authority support for Children and Families, which is published by Jordan Publishing.

[1] Southwark v D (CA), para. 58.

[2] R(SA) v Kent County Council [2010] EWHC 848 (Admin) at para. 73.

[3] Children and Young Persons Act 2008, s.8 replaces the old s.23, Children Act 1989 with new sections 22A to 22F.

[4] Kent County Council v SA (CA), paras 37 – 42.